AO, R (on the application of) v Secretary of State for the Home Department

A decision-maker must determine an asylum application within a reasonable time, assessed in its factual and administrative context. There is no general legal requirement to determine an unaccompanied child’s claim within a particular period or before the child reaches 17.5 years. The Immigration Rules’ requirement of “particular priority and care” requires more than simple precedence over all adult claims. It includes attention to welfare, maturity, appropriate interviewing arrangements, representation and specialist decision-making. Administrative timetables and process maps may be targets rather than enforceable deadlines. A discretionary leave policy intended to protect certain children during their minority does not create an obligation to decide their asylum claims before the policy cut-off age. An aspirational target does not ordinarily create a legitimate expectation of a decision, or of discretionary leave if the claim is refused.

The claimant, an Iraqi national who arrived in the United Kingdom as an unaccompanied minor, claimed asylum in November 2008. His substantive interview took place after he had passed 17.5 years, and his asylum claim was later refused. His appeal was dismissed by the First-tier Tribunal, and permission to appeal was refused.

He sought judicial review of the alleged failure to determine his claim before he reached 17.5 years. By the substantive hearing, the original grounds were academic. The issues were whether the Secretary of State was required to determine the claim within a specified period or order of priority, whether there was a duty to decide it within a reasonable time or a legitimate expectation of discretionary leave, and whether the claim had been determined within a reasonable time.

1. No fixed timetable or priority order. The relevant European instruments, domestic statutory provisions, Immigration Rules and policy documents did not require the Secretary of State to determine an unaccompanied child’s claim within a particular timeframe or before the child reached 17.5 years. The process map in the guidance was no more than a target for caseworkers.
2. Meaning of priority and care. Paragraph 350 of the Immigration Rules required the claim to receive particular priority and care, read as a composite expression. It did not mean that every unaccompanied child’s claim had to be determined before every adult claim. The surrounding provisions required attention to maturity and welfare, child-sensitive interviewing, appropriate adult representation and specialist decision-making.
3. Reasonable time. A decision-maker has a duty to determine a duly made application within a reasonable time. What is reasonable depends on the individual facts and the wider decision-making context, including pressure on scarce public resources. The court will intervene only for unlawfulness, irrationality or unreasonableness. The processes used for unaccompanied children were consistent with that duty.
4. Legitimate expectation and discretionary leave. The claimant had no legitimate expectation of a decision within two months or of discretionary leave if asylum was refused. The booklet’s wording was aspirational, and the Rules imposed no fixed timetable. The discretionary leave policy protected certain minors where adequate reception arrangements were unavailable; it did not require the Secretary of State to decide claims before 17.5 years.
5. The claim had, on an objective assessment, been determined within a reasonable time. There was no abuse of process or power. The application for judicial review and the relief claimed were refused.

The judgment describes earlier interim and permission proceedings, including an interim order requiring an interview before 15 April 2009 which was later set aside. The claim was determined at first instance in the Administrative Court.